Tuesday, Mar 18, 2008    Text size: 

ICM contends that the U.S. government intervened in behind-the-scenes fashion to get the Internet Corporation for Assigned Names and Numbers (ICANN) to reject ICM’s proposal to establish the .XXX domain, and filed a FOIA complaint in May of 2006 in pursuit of documents that would provide proof of the government exerting influence on ICANN.

The U.S. Commerce and State departments eventually released many of the documents sought by ICM, but withheld or redacted some, claiming that those items fell within the “deliberative process privilege.”

The deliberative process privilege includes certain exceptions, including a “misconduct” exception, which ICM asserted should prevent the government from claiming the privilege in this case.

“ICM submits here that the misconduct exception prevents the government from using the deliberative process privilege unless it can point to a legitimate policy decision that it could have reached with respect to the topic at issue — in this case, the approval of a .XXX domain,” wrote U.S. District Judge James Robertson in his decision issued March 12. “Because the role of the [U.S.] with respect to the addition of new domains to the Internet is ministerial — NTIA merely follows the recommendations of ICANN — ICM believes that the government can point to no legitimate policy that it could have been deliberating with respect to .XXX, and so the deliberative process privilege should not apply.”

Robertson disagreed with ICM, however, and stated that the company had not provided sufficient evidence of misconduct on the part of the government to sustain its claim that the deliberative process privilege should not apply.

“Whatever the boundaries of the misconduct exception, they cannot be as expansive as ICM declares them to be,” Robertson wrote. “The exception runs counter to the purposes that animate the deliberative process privilege, and it thus makes sense to apply it narrowly. If every hint of marginal misconduct sufficed to erase the privilege, the exception would swallow the rule.”

Robertson added that “[a]bsent some showing that consideration of domain name and Internet policy is outside these departments’ and agencies’ domains — and none has been made — or that they opposed .XXX for nefarious purposes, their action is not misconduct within the meaning of the exception to the deliberative process privilege.”

“If the government ‘leaned on’ ICANN or any other decision maker that it did not directly control, it policy choice to do so is discoverable under FOIA,” Robertson wrote. “That choice (if it was made) was not ‘political abuse,’ however, and so the deliberations that underlay it are properly exempt from disclosure.”

In an interview Tuesday, ICM Registry President Stuart Lawley told XBIZ that ICM will appeal Robertson’s decision.

“We had been supplied over 1600 documents in this matter, which gave us a clear picture of the intervention by the [Commerce Dept.], and the behind the scenes goings on in the government over the .xxx matter,” Lawley said. “Some documents were redacted citing certain legal exemptions as part of the governments ‘deliberative process.’ We found that very illuminating and were keen to uncover exactly what was so potentially damning and sensitive in those documents, so we sought to challenge the governments’ ability to redact such information.

“Unfortunately, the Judge decided, without reviewing the full unredacted documents, that the governments’ assertions as to why they were allowed to redact were valid and upheld their claim,” Lawley added. “We disagree and will appeal that judgment, but it must be remembered that this case was only to discover documents, not to challenge ICANN’S decision to unfairly reject our application. That is a matter we need to press on with now.”

Lawley also asserted that a close reading of Robertson’s decision reveals that ICM “did, in fact, meet ICANNs selection criteria.”

Lawley also told XBIZ that ICM had always intended to take action against ICANN’s decision to reject its application, but “we were simply waiting to try to get as much information out of the FOIA request before we proceeded.”

It is clear that the fight is far from over, from ICM’s perspective, and Lawley said there are several other possible courses of action for the company in its continuing effort to establish the .XXX TLD.

“In light of the recent ruling, and in light of the existing information we have, we are currently assessing which route is the most appropriate and expeditious to get .XXX added to the internet Root Zone File,” Lawley said. “We are in conference with our legal team and an announcement will be made soon.”